This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Tuesday, July 29, 2008

Take a look at Juries, a blog by Prof. Thaddeus Hoffmeister of the University of Dayton School of Law. There are lots of interesting posts on a variety of issues. He picks up news from around the world (e.g., Gibraltar, Jamaica, Ireland). And he had regular posts listing recent scholarship.

Senior aides to former Attorney General Alberto R. Gonzales broke Civil Service laws by using politics to guide their hiring decisions, picking less-qualified applicants for important nonpolitical positions, slowing the hiring process at critical times and damaging the department’s credibility, an internal report concluded on Monday.

Monday, July 28, 2008

Despite a Justice Department promise to seek funds for a substantial increase in Immigration Judges, the number of these judges today is below what it was in 2006, according to a special new report by the Transactional Records Access Clearinghouse (TRAC).

The Fastcase Blog has an interesting piece summarizing a BBC report on knife crime -- violent knife crimes are up in Britain, so the BBC took a look at other parts of the world. Worldwide Knife Crime Survey, Fastcase Blog, July 17, 2008.

Fastcase is an online legal information system trying to compete with the industry giants of Westlaw and LexisNexis. it offers 50-state and federal coverage and (little surprise) more affordable pricing plans.

Fastcase also produces the Public Library of Law, purportedly the world's largest free law library. It includes U.S. Supreme Court cases (all the way back), federal court of appeals cases (1950-date), cases from all 50 states (1997-date), and federal and state statutes .

Sunday, July 20, 2008

What do I have in common with famed trial lawyer Gerry Spence? That's right: we're both bloggers. He started his blog on July 16: Gerry Spence’s Blog.

I have learned things about our broken judicial system I want to expose to you.

I have ideas about our condition in this slave-hold under which many decent Americans suffer.

* * *

My greatest fear is that I will die before my life’s work is complete. That unfinished business includes joining you in this internet world and sharing with you what I have learned. I hope you will hear my timid knocking at your door and let me in.

Mayfield was a youngish attorney starting a practice in Beaverton, OR. Then he was suddenly in the international news, arrested as a material witness in the Madrid train station bombings, with leaks from the government indicating that his fingerprint matched one found on a bag of explosives. Much later, it was revealed that the Spanish National Police never agreed with the FBI's identification and in fact eventually matched the print to an Algerian suspect. By the way, it appears that the FBI focused on Mayfield largely because he was a Muslim married to an Egyptian-American.

Hamad was one of several Guantánamo detainee's Wax's office represented. Sudanese, he had spent years working for relief organizations in Pakistan and Afghanistan: he taught school in a refugee camp and he was a hospital administrator. One day Pakistani police -- along with someone with an American accent -- picked him up in his apartment in July 2002. He was questioned (again and again) in a prison in Pakistan, suffering physically to the point that his captors hospitalized him, and then in March 2003 questioning and rough treatment in the Middle East, he was flown to Guantánamo. Two years later, after Rasul v. Bush, 542 U.S. 466, Findlaw (2004) the Army notified detainees that they could petition for habeas corpus and, in March 2005, Hamad handwrote his petition. It was in February 2006 that he first met his lawyer. In December 2007, he finally returned home. He still hopes to have a hearing that will declare that he never was an enemy combatant.

The book presents a good picture of the multi-faceted advocacy Hamad's team presented -- administrative, judicial, political. They interviewed his family and colleagues in Sudan, Pakistan, and Afghanistan. They met with high-ranking Sudanese government officials (and they often couldn't get their calls to U.S. officials returned). One way they increased awareness of his situation was through videos on YouTube, first Guantánamo Unclassified (narrated by one of the public defender investigators):

and then Guantánamo: Waiting for Justice (introduced by Martin Sheen):

Wednesday, July 16, 2008

The National Coalition for a Civil Right to Counsel has launched its new website, providing advocates and the public with a much-needed information source and a way to coordinate efforts to expand recognition of a right to counsel in civil cases. The Coalition is comprised of over 150 advocates from national and state-based groups and the website is a great place to find the latest news developments, relevant case law, research and policy studies, and updates on current "civil Gideon" efforts in both legislatures and the courts, as well as information on ways to promote a civil right to counsel in your state.

I think a lot of the stories would be very helpful to aspiring -- or even experienced -- trial lawyers. Many of them are also interesting to anyone who likes a good story.

There's humor too.

I witnessed two legendary defense lawyers get scorched by taking a chance in cross examining Outfit enforcer Jimmy LaValley, a street-hardened thug who feared nothing in life. At least, he feared nothing until Matt Lydon explained to him the risks of being sentenced by a certain judge some considered rather unpredictable. He flipped and testified for the government in a half-dozen major organized crime cases.

In one, LaValley was cross-examined by the famously flamboyant (and now deceased) Julius Lucius Echeles, who was defending a former LaValley protégé name Nick Gio in an arson-for-hire case. Echeles' defense of the young Gio was that he had lost his father as a teenager, that he had come under LaValley's spell, and that LaValley had dragged him unwillingly into a life of crime.

Echeles was on a roll, getting LaValley to admit that Gio lost his father at a young age, that he met LaValley shortly afterward, and that Gio looked up to LaValley, when he asked the fateful question:

Q. Isn't it true that this young man came to you for guidance in his life?

A. I think is exact words were, "I want to be in the mob. Can you help me?"

Chris Gair, p. 107.

Every trial lawyer "borrows" from other trial lawyers -- whether it is stories we tell in final argument, approaches we use in cross-examination, or the way we may stand in the courtroom.

-- Steven F. Molo, p. 244

Your Witness gives you a host of trial lawyers to borrow from, as they share a maxim here, a turn of phrase there, a bit of caution, a funny story, an embarrassing mistake.

It will be available in the library soon (it hasn't been cataloged yet), in our Good Reads section.

Monday, July 7, 2008

Historians -- led by the National Security Archive at George Washington University -- have sought the opening of the record of the grand jury testimony in the case against Julius and Ethel Rosenberg. Now the federal government has given the go-ahead, at least for 35 witnesses who are either dead or have consented to the release; there were 10 other witnesses who have not consented (sometimes because they could not be located). Rosenberg Case Materials Are Closer to Publication - NYTimes.com, June 25, 2008.

Sunday, July 6, 2008

The Spokane judge who will preside over rapist Kevin Coe's civil-commitment trial this fall has decided that 21 women on a state list of uncharged rape and indecent-liberties accusations can be included in the trial to determine whether Coe is a violent sexual predator likely to rape again.

Among the 17 rape cases allowed to proceed, "I find, by a preponderance of the evidence, that the perpetrator was Mr. Coe," Spokane County Superior Court Judge Kathleen M. O'Connor said in the decision released Friday.

The state is "very pleased" with O'Connor's ruling, said Assistant Attorney General Todd Bowers, the lead attorney in the state's case against Coe.

Saturday, July 5, 2008

Last week I went downtown to the Avvo offices for the second Seattle Law Blogger Meetup. It's interesting to chat with other bloggers about what they do, how they do it, and why.

This week, Mike Rice (who writes Tax Law Journal) wondered whether any of us were going off our law topics to talk about the Fourth of July and the holiday weekend. He wondered how much we bring our nonlegal lives into our blogs.

Well, I hadn't thought about saying anything about the holiday, but why not?

The afternoon of the Fourth, I had the dogs at Magnuson Park's off-leash area, since a newspaper article had recommended giving dogs a lot of exercise: tired dogs don't freak out as much at the fireworks. While there, I saw Maurice Classen, a Trial Ad instructor who is teaching Evidence summer quarter and was there for the same reason. You know what we talked about? Dogs, mostly. It was nice to have a day off so we could both be away from our jobs.

Sunday afternoon at 4:30 The Ballard Sedentary Sousa Band (in which I play second alto) is performing at the Ballard Locks. It's free and a pretty good time -- bring a picnic and the kids. The Fourth of July connection should be obvious: our repertoire is classic marches. Is there a legal connection? See 36 U.S.C. § 304.

Plaintiff has a great deal to say,But it seems he skipped Rule 8(a).His Complaint is too long,Which renders it wrong,Please re-write and re-file today.

The case is Presidio Group LLC et al. v. GMAC Mortgage LLC et al., no. 3:08-cv-05298-RBL. So that it's clear that Judge Leighton analyzed the case with more than a funny verse, here's the full order (filed June 27, 2008):------------------------------------------------------------------------------

I. INTRODUCTION

Pending before the Court are Defendants’ Motions for a More Definite Statement (Dkts. #12, 19, 20, 21).

Defendants Cano, GMAC, F. James Mayhew, and Mark Schaller assert that Plaintiff’s Complaint, at 465 pages, is repetitious and needlessly long. They request that Plaintiff strike the unnecessary material and re-file his Complaint.

II. DISCUSSION

“Brevity is the soul of wit.”--William ShakespeareHamlet, Act 2, Scene 2, Line 90.

Brevity is also the soul of a pleading. See Fed. R. Civ. P. 8(a). The Federal Rules envision a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. Under the liberal system of “notice pleading,” a claimant need not set out in detail the facts upon which he bases his claim; to the contrary, the claimant need only give the defendant fair notice of what the claim is, and the grounds upon which it rests. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001), quoting Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). When alleging fraud, however, a plaintiff must “state with particularity the circumstances constituting fraud . . . .” Fed. R. Civ. P. 9(b). The Court recognizes the tension between Rule 8(a), which requires a “short and plain statement,” and Rule 9(b), which requires the party state his claim with particularity. The issue before the Court is whether Plaintiff’s 465 page Complaint correctly balances this tension.

The Complaint does not correctly balance this tension. The title to the Complaint is eight pages. (Compl., 1-8) (Dkt. #9). It appears to list all of Plaintiff’s claims, as well as their statutory and precedential basis. In eighteen pages following the title, the Plaintiff lists the Defendants. There are six Defendants. This section consists largely of useless repetition.

Not before page 30 does the Complaint address the facts alleged. Plaintiff’s allegations continue for 87 pages — including a 37 page pit-stop to quote emails. (Compl., 39-76). The Court notes, with some irony, that in his response opposing Defendants’ motions for a more definite statement, the Plaintiff successfully states his allegations in two pages. (Pl.’s Resp., 1-3)(Dkt. #25).

On page 117, Plaintiff embarks on an odyssey through his claims for relief. While the Court understands that asserting 54 claims requires some space, the 341 pages used to do so is unreasonable. The root of the problem lies in paragraphs like the following:

In sum, while Rule 9(b) requires particularity, the sheer quantity of redundant material presented here forces the Court and the Defendants to engage in an unreasonable amount of filtering. Plaintiff need only state the circumstances constituting fraud; he does not need to quote every email he intends to present into evidence.

The Court strongly recommends that Plaintiff read The Elements of Legal Style, by Bryan Garner.1

III. CONCLUSION

Plaintiff has a great deal to say,But it seems he skipped Rule 8(a),His Complaint is too long,Which renders it wrong,Please re-write and re-file today.

(a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(emphasis added). Rule 9(b):

(b) Fraud or Mistake; Conditions of Mind.In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

(emphasis added). Recall that the Federal Rules of Civil Procedure were amended last fall. See this post and this post. The new text of all the rules is here.

The Elements of Legal Style is available in the Library: KF250 .G37 2002 at Reference Area.

Tuesday, July 1, 2008

Yesterday Judge Charles R. Snyder (Whatcom County Superior Court) ordered the state Dept. of Social and Health Services to take action within 30 days on a list of changes it agreed to in a settlement in 2004. Maureen O'Hagan, Judge demands state keep foster-care promises, Seattle Times, July 1, 2008.

The ruling came a decade into what's known as the Braam case, named for the lead plaintiff, Jessica Braam, who had been bounced through 34 foster-care placements by the time she was 12 years old. Her case came to be seen as emblematic of problems that plagued the foster-care system. At any one time, about 10,000 Washington children are in foster care.

Attorneys for the children, led by Casey Trupin, a lawyer for Columbia Legal Services, and Tim Farris, a personal-injury lawyer from Bellingham, had argued that Jessica — and thousands like her — had been harmed by the state's broken system. Farris, for example, has represented numerous children who have been sexually or physically abused while in foster care.

After years of wrangling, the Braam case was settled in 2004. The state agreed to a timetable to meet certain measurable goals, such as reducing the number of children who bounce through placements. In addition, it created a panel to track the agency's progress.

The panel has repeatedly found that the state has fallen short. But because the panel has no enforcement authority, there were no real consequences. Monday marked the first time that the plaintiffs had thrown up their hands and taken the state back to court.

"If this isn't a stalemate, I don't know what is," Trupin argued in court.

For lots more information about the case, see BraamKids. This site, created by the plaintiffs, has background on the case, information about the oversight panel, the settlement agreement, and more. The Washington Supreme Court opinion in the case is Braam ex rel. Braam v. State, 150 Wash.2d 689, 81 P.3d 851, Westlaw linkPLOL link (free registration required) (Dec. 18, 2003) (Wash., 2003)